Courts play an integral role when contesting a will. Although many wills disputes involving a contested will can be resolved through negotiations and/or mediation, sometimes the matter isn’t resolved in this phase, and it moves on to a court proceeding.

Speaking with an experienced wills and estates lawyer is the first step in helping you navigate the often complex process of contesting a will in court in NSW.

What it Means to Contest a Will in NSW

To contest a will in NSW means to bring a family provision claim against a deceased estate for provision (if the will made no provision for the claimant) or further provision (if the will made some provision for the claimant) from the estate. 

This is different from challenging a will, which occurs when a person takes issue with the ‘validity’ of the will itself, rather than the amount of provision within the will.

The Role of the Court when Contesting a Will in NSW

The role of the court when contesting a will involves ‘case-managing’ the proceedings to ensure procedural fairness to all parties, encouraging an early resolution, determining interlocutory questions and if required, setting the matter down for a final hearing. 

When contesting a will in a NSW court, the court will case-manage the proceedings to ensure procedural fairness to all parties, encourage an early resolution, determine interlocutory questions, consider and evaluate each party’s evidence, apply the relevant provisions of the Succession Act 2006 (NSW) and any other relevant legislation.

The court proceedings will conclude with the determination of the success (or degree of success) of each party’s claim.

Filing a Contested Will Claim in Court

A person may contest a will by filing a Summons and supporting documentation with the court registry. The supporting documentation includes an affidavit, a notice of eligible persons, and a costs affidavit. 

Steps for Filing Contested Will Proceedings in NSW

Before filing contested will proceedings, a person should seek legal advice from an experienced wills and estates lawyer on the strength of the claim. 

It is important that a potential claimant understands the risks involved in commencing court proceedings, particularly in relation to cost consequences that may arise if the claim is proven unsuccessful or is ultimately withdrawn. 

If, after having sought legal advice, a person decides to commence proceedings to contest a will, they may instruct their solicitor to take the following steps:

1. 1. Prepare the documents required to commence the claim.

1. 1. File the documents with the court registry.

1. 1. Obtain a return date (i.e. the date the matter is first listed before the court).

1. 1. Serve the sealed documents on the executor and any other relevant parties.

1. 1. Attend court on the return date. 

Time Limits for Filing Contested Will Proceedings in NSW

In NSW, contested will proceedings (otherwise referred to as a ‘family provision claim’) must be commenced within 12 months of the date of death of the deceased person on whose estate the claimant is claiming, unless the court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. 

Documents and Information for the Court Hearing

Claims that are not able to be settled during a negotiation phase may proceed to a final hearing. The final hearing is the opportunity for each party to present its case, present evidence and make submissions to the court. 

Prior to the hearing, each party will be given an opportunity to file and serve evidence that they intend to rely on at the hearing. The documents and information that may be relied upon at the hearing may include: 

1. 1. Affidavit(s) from each party.

1. 1. Affidavit(s) from each of the party’s witnesses. 

1. 1. Expert witness report(s).

1. 1. Cost affidavit(s). 

The Court Hearing

Once any administrative matters have been raised and dealt with, the court will proceed with hearing evidence from each party. 

The plaintiff will give evidence first. The process often involves the plaintiff’s affidavits being ‘read’ into evidence. The Judge will read the affidavit (to themselves in silence) and an opposing party may take objection to all or part of the affidavit. The affidavit is either admitted in full, in part, or rejected, depending on the objections taken. The plaintiff may then be given an opportunity to give further oral evidence from the witness box, and may be cross-examined by the opposing parties.  

The process is repeated for each of the plaintiff’s witnesses. 

Once the plaintiff has called all their witnesses, the defendant will be given an opportunity to call their witnesses.

The process is then repeated for any additional parties.

The Role of the Judge

When a will is being contested in court, the overseeing Judge plays an important role in managing the process. The role of the Judge in family provision claim proceedings is to facilitate the smooth conduct of the hearing to ensure procedural fairness to all parties while applying the relevant law. 

Their duties range from hearing evidence, determining admissibility of evidence, and ultimately, determining the outcome of the proceedings in the form of ‘final orders.’ Here, the claimants find out if their attempt at contesting the will was successful or not.

The Role of the Parties and Their Solicitor

Each party must assist the court to ensure an efficient, orderly, and fair hearing. 

Each solicitor should identify, preserve, tender and promote the evidence that advances their client’s case and use it to highlight the strengths of their client’s claim. 

Each solicitor should also identify, preserve, tender and promote the evidence that weakens their opponent’s claim.

An experienced wills and estates solicitor, like the team at Empower Wills and Estate Lawyers, will be best placed to advise on what evidence may strengthen or weaken a claim.

The Court’s Decision

After hearing evidence from all parties, the Judge will make a decision on the success of the application. 

Where a claimant is successful, the court may order that the estate pay the claimant an amount of money from the estate. 

Where a claimant is unsuccessful, the court may order in favour of the defendant, which is most often the executor. 

Where there are more than two parties, there may be several parties who are either wholly or partly successful. The court will also make orders in relation to any costs applications made by any parties. The law regarding costs in succession claims is complex and requires advice from an experienced will and estates lawyer. 

Appeals of the Court’s Decision

In the event of an unfavourable outcome, consideration should always be given to an appeal. 

Although not exhaustive, in Burke v Burke [2015] NSWCA 195 at [40], the NSW Court of Appeal said the appellant must demonstrate ‘an error of principle; a material error of fact; a failure to take into account some material consideration, or the converse; or that the result is unreasonably or plainly unjust so as to bespeak error of such a kind.’

We recommend any person who has been party to an unsuccessful or otherwise disappointing court judgement to contact an experienced solicitor who will be able to assist with identifying any grounds to appeal and prospects of appeal when contesting a will in NSW. 

Alternatives to Court

Most disputes involving a contested will can be resolved through negotiations and/or mediation.

Negotiations can promote an early and cost-effective resolution. During negotiations, a lawyer may write to the executor (and beneficiaries) detailing their client’s position supported by relevant legal reasoning and make or respond to an offer.

Mediation can also promote an early and cost-effective resolution. Mediation is an alternative dispute resolution process whereby the parties meet with an independent, impartial and neutral third-party mediator who assists the parties with the negotiations and helps facilitate settlement of the issues. 

If a settlement can be reached during either negotiations or mediation, the parties may choose to formalise the agreement through a private agreement (i.e. Deed of Family Arrangement) or court orders, depending on the circumstances.

If negotiations and mediation prove unsuccessful, the matter may progress to or continue in court. 

Mediation as an Alternative to Will Contests in Court

Mediation is an alternative dispute resolution process during the wills contest process. It happens when the parties meet with an independent, impartial and neutral mediator who assists the parties to reach an agreement.

Mediation can take different forms including judicial settlement conferences, court-annexed mediation, or private mediation.

The success of mediation will largely depend on each party’s willingness and ability to negotiate in circumstances which often involve deep conflict between immediate family members. 

Needing Legal Advice With Contesting a Will?

If you need legal advice in relation to contesting a will, contact us now on 1300 414 844 or [email protected] for a free and confidential initial consultation. 

Our fee structures are tailored to each client and include sliding fee scales, payment plans, pensioner discounts, and conditional ‘no win, no fee’ costs agreements in select cases. 

Want to learn more?

Read more about how to contest a will in NSW here.

Read more about who can contest a will in NSW here.

Read more about the cost of contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.